From prison to house arrest: out of the frying pan

Clarke’s control orders are reminiscent of apartheid South Africa’s banning orders – MPs of all parties should reject them

This is the text of an article published in the ‘Comment’ section of the Guardian on 28 January, 2005, following the announcement by the Home Secretary, Charles Clark, on the 26th of proposals for replacing the present law (under which the Home Secretary may keep indefinitely in prison, without trial, non-British nationals whom he suspects of involvement with terrorism) by a new law empowering the Home Secretary to place anyone in the country, British or non-British, under house arrest, and/or to ban him or her from using a mobile phone or the internet, from meeting specified people, from being out of the house after a specified time, etc. He will also be able to have a suspect electronically tagged. Also on 28 January The Times (London) published as its lead letter another attack by myself on the government’s proposals (also available on this website). Hyperlinks on this page have been added.

Better than Belmarsh – just

Question: who said last February, “While it would be possible to seek … powers to detain [without trial] British citizens who may be involved in international terrorism, it would be a very grave step. The government believes that such draconian powers would be difficult to justify”?

Because only foreigners could be detained in this way, anti-terrorist laws were held to be discriminatory and to be disproportionate to the threat from terrorism. So Mr Clarke now proposes the extension of the power of detention without trial to Britons as well as foreigners. This represents a huge enlargement of the power of the executive over the citizen, and flouts a principle of justice at the heart of English tradition since Magna Carta in 1215.

The proposed “control orders” are uncomfortably reminiscent of “banning orders” in apartheid South Africa. They would allow the government to impose restrictions on terrorist suspects short of putting them under house arrest, such as banning them from meeting specified people, or using the internet or mobile phones. In practice, they would probably only be enforceable if accompanied by detention at a specified address – which is equally incompatible with Britain’s human rights obligations and traditions.

It’s better than being banged up in Belmarsh, certainly – but it still means depriving a person of his or her liberty who has not been convicted of any offence and who will no longer be able to earn a living, support a family, or lead anything like a normal life. And all without a conviction in a court of law.

The home secretary admits that this new measure may require a new opt-out from the UK’s obligations under the human rights convention, but it’s not obvious that a new opt-out would be any more valid under the convention than the previous one, of much more limited application but quashed by the law lords as disproportionate to the terrorist threat.

It gets worse. If the “control order” imposes bans that are sufficiently wide-ranging and restrictive, eventually one of them is likely to be breached. Mr Clarke confirmed in the Commons on Wednesday that any breach will be a criminal offence punishable by imprisonment. Thus control orders are an ingenious way of restoring the home secretary’s power to send a person to prison on the mere suspicion of involvement in terrorism, without the inconvenient need to prove a case against him on a terrorism-related charge: imprisonment by the back door.

Mr Clarke inexplicably refuses to introduce a more equitable system under which terrorist suspects could be tried in a criminal court by a judge and jury with powers to hear secret evidence (in exceptional cases, including evidence not disclosed to the accused). If found guilty “beyond a reasonable doubt”, they could be imprisoned or detained – by the court, not the home secretary. Judge and jury could be security-cleared, or the judge could see the secret evidence and describe it to the jury without revealing the source or techniques used to get it.

The home secretary acknowledged that a court trial and conviction would be preferable to using the ministerial powers proposed, yet he sets his face against the relatively modest procedural changes that would allow the power of detention to be restored to the courts, where it belongs. This would be a far better way forward: parliament should insist on it.

Why are these draconian powers necessary to protect Britain from terrorism when no other western country has taken similar powers? No other signatory to the human rights convention has thought it necessary to opt out of its provisions or even to declare a state of emergency to enable it to do so. Britain’s “emergency” implies a temporary crisis with an end in sight: but can anyone foresee an end to the terrorist threat in the foreseeable future? Once parliament has granted these swingeing powers, no government is likely to agree to surrender them. Can we confidently trust every future government to wield such easily abused powers with fairness and moderation?

Mr Clarke’s plan to deport the Belmarsh detainees on the basis of assurances from their countries of origin that they will not be executed or tortured is also completely unacceptable: such assurances would be mostly worthless. The law lords held their continued detention to be in breach of their rights: they should be charged and tried, or released forthwith and placed under surveillance.

Far from remedying the law’s defects, the new proposals reproduce them and apply them more sweepingly. Substituting house arrest for prison is irrelevant to the breach of human rights entailed, and cannot possibly justify the further breach. Parliament should not be lulled by Mr Clarke’s reasonable and moderate manner that contrasts with his predecessor’s. MPs of all parties should reject the proposals and insist on proper criminal trials. Depriving people of their liberty is the job of the courts, not the government.

If ever there was a case for backbench MPs to act on their independent judgments and not in obedience to the whips, this must be it. Many general election votes may also depend on the outcome – including mine.

· Sir Brian Barder is a retired British diplomat who was a lay member of the Special Immigration Appeals Commission, from which he resigned in January 2004 because of his objection to the indefinite detention of terrorist suspects without trial

[1] [Not in Guardian article]: This phrase was added in the course of editing at the Guardian. The law lords declared the provisions for detention of foreign terrorist suspects to be incompatible with Britain’s obligations under the European Human Rights Convention, but that this declaration does not make those provisions ‘unlawful’ and they remain in force until and unless parliament repeals or changes them in response to the law lords’ judgement. The law lords did however quash the government’s derogation from the Convention article on the right to liberty. On 1 February the Guardian published a correction to this effect, making it clear that the error had been inserted in the course of editing and that my original text had set the position out correctly. [Return to reference]